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Constitutionality of Pennsylvania's Act 13 'Significant Concern' for Industry

July 22, 2013
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There is "significant concern" among oil and gas interests that the Pennsylvania Supreme Court could deadlock in a 3-3 tie over the constitutionality of Act 13 because the high court's newest appointee will not participate in the case challenging the law.

Art Heinz, spokesman for the state Supreme Court, told NGI that Superior Court President Judge Correale Stevens is scheduled to be sworn in as the high court's seventh justice on July 30. "Typically, if a person coming onto the bench has not participated in oral arguments that have already been held, they would not participate in the decision making," Heinz said.

At issue is the constitutionality of Act 13, the state's omnibus Marcellus Shale law. Last July, the state's Commonwealth Court ruled 4-3 that the zoning restrictions contained in Act 13 violated municipalities' right to substantive due process (see NGI, July 30, 2012). Gov. Tom Corbett immediately appealed the appellate court ruling, and the state government followed with a call for an expedited hearing. The Supreme Court heard oral arguments on the case last October (see NGI, Oct. 22, 2012).

Corbett nominated Stevens to the high court in June to fill the spot vacated by former Justice Joan Orie Melvin, who resigned after her conviction on six counts of corruption. Orie Melvin had not participated in the Act 13 case (Robinson Township et al v. Commonwealth et al, No. 284-MD-2012). A split decision would mean the lower court ruling would stand.

Lou D'Amico, president of the Pennsylvania Independent Oil and Gas Association (PIOGA), told NGI that he doesn't expect a ruling weighted heavily in favor of the plaintiffs or the defendants. "I think they're going to uphold part of the language in the Act and maybe change some other stuff or remand it back to the General Assembly to do something different," D'Amico said. "I don't see a split decision coming. I think the Supreme Court will take a reasoned approach and come up with some final answer on it."

Kevin Moody, general counsel for PIOGA, told NGI the defendants wanted to see a full complement of seven justices on the high court, and that there was "significant concern" with Stevens sitting out. "Obviously the worst possibility, aside from a 3-3, would be a flat out prohibition on the legislature doing anything contrary to so-called local zoning power," Moody said.

The plaintiffs in the case include Cecil, Mount Pleasant, Peters and Robinson townships in Washington County, South Fayette Township in Allegheny County, Nockamixon Township and Yardley Borough in Bucks County. Plaintiffs' attorney Jordan Yeager, of the Morrisville, PA-based law firm Curtin & Heefner LLP, told NGI that the municipalities "feel confident that the Supreme Court, however constituted, is going to recognize that Act 13 violated the state constitution, and that it will uphold what the Commonwealth Court decided."

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